Militant moderate, unwilling to concede any longer the terms of debate to the strident ideologues on the fringe. If you are a Democrat or a Republican, you're an ideologue. If you're a "moderate" who votes a nearly straight party-ticket, you're still an ideologue, but you at least have the decency to be ashamed of your ideology. ...and you're lying in the meantime.

Wednesday, March 26, 2008

Citizen Raising Cain

I was summoned for jury duty way back in January, and told to report in late February. They were fairly snotty and officious in their summons; I don't like that. They work for me. They need to remember that.

The first day of jury duty rolled around and I showed up on time. Early, actually. I don't like being late. Unfortunately, about 40% of my fellow jury poolers didn't feel the same. I sat. And I sat. And I sat.

And I sat some more.

More future jurors trickled in one. At. A. Time.

An hour after our scheduled start time, a judge finally showed up to welcome us all, and thank us for being the guiding rail of the American Justice System. Apparently, they at the courthouse are fully aware that us Guiding Rails can't, as a group, bother to show up on time, so they don't even try to start on time. For the next half hour, more jurors trickled in with loud clumps and bumps, and disturbed everyone else.

We got a pep talk from this judge. A Santa-ish gentleman, claimed to be "Chief Judge" for the county. I wouldn't know. I vote against all judges as a matter of principle. Only in rare cases do I know their names. My knowing their names nearly always means that they have done something I find particularly reprehensible. In case any judge is reading this, and assuming he cares, he would be advised to skip past me in anonymity.

After the judge's pep talk, the clerk of the circuit court came to give us another. Wow. Was I ever getting pumped!

This talk was from the guy I address my child support checks to each month. He looked like a weasel. That had been crossed with a rat. And dressed in a gray suit. Pretty much as I imagined. I vote against him, too.

Then we got an orientation from the lady in charge of the jury pool. Her orientation consisted of saying "...and now we'll have a seventeen minute video describing jury service, afterwards I'll come take you downstairs."

Woohoo! All this and a movie to boot! Could this be any more rollicking?!

The movie was "official"; created by some law group, or lawyer group, or judicial group. The production quality was on a par with the old filmstrips we had in grade school. A whole series of still photographs choreographed to an LP record. But this video one-upped the filmstrip and occasionally scrolled a word or phrase up the screen. Those loyyers sure know all the tricks!

In this film we got to read and hear all the famous jurists throughout history say how important jury service is. It is "the citizens' last line of defense against tyranny"... which is ironic considering that they tell jurors to essentially ignore what would be tyrannical.

If a jury is truthfully to be the "final line of defense against tyranny" then the jury's first duty is to determine whether the law being applied is being used in the manner that the citizens – represented by the jury – intended when those citizens went to their legislators and asked for the law in the first place.

Citizens have demanded laws against jaywalking because jaywalking creates unnecessary traffic congestion downtown. When the jaywalking law is used to cite some schlemiel trying to leave a burning building and get as far away from it as possible as quickly as he can by crossing the street in the middle of the block, …then that is probably not what the citizens had in mind when they demanded the jaywalking law, and the jury needs to be able to say “not guilty by reason of inappropriate application.”

Many tyranny apologists are going to say, “oh, but that wouldn’t happen. No cop would write a ticket for something like that, even if there’s a law against it.” And the apologists would be correct … right up to the time they weren’t. We read about these things happening all over the country. A cop a little big for his britches runs across someone he doesn’t particularly like or who rubs him the wrong way, and starts issuing citations for having too many mules on Main Street on Sunday. A prosecutor wishing to pad his conviction rate with a gimme puts it before the arrogant judge who believes that he and he alone, and especially not the “mere citizen”, understands the purpose of The Law. Hizonner informs the jury that they can only address the facts of the case, and not the application of the law.

Incorrect.

If the jury doesn't like the way the law is being used they must be able to tell the judge and the prosecutor to use the law differently. Stupid and outrageous applications of law happen every day. If, after determining that the law is being applied the way the citizens wanted, only then is their job to determine the facts of the case.

Or, more cynically, which side had the better loyyer.

I have been aware for years that juries in our nation are not told of this first duty. I've always found that troubling. Tyranny is the inflexible application of legal authority upon citizens using laws that the citizens consider unjust – or merely unjust in the way the law is being used in a specific instance. The jury system was specifically created to place a citizen panel between the application of law and the defendant; between the combined weight of the legislature, cops and judge ... and a specific citizen accused of doing something wrong. If the jury is only allowed to consider whether the "facts" support a conviction and not whether the law is being properly applied in the first place, then that "line of defense" turns itself into a rubber stamp for whatever the law enforcers cook up. That isn't a defense of liberty; that is a ratification of reflexive, formulaic punishment and a rationalization of police-statism.

When citizen juries cannot prevent the legal system from injustice here and now when they have the opportunity, but instead must defer such judgment until they write a letter to their legislator, then we aren't being protected from tyranny. We are being told to accept tyranny; we are being subordinated into tyranny.

Of course, those rationalizing the system will say, "but the citizen doesn't have the legal knowledge necessary to determine if this is a properly applied law. Only those 'expert' in the law can determine that. The jury and the general public just has to trust us that we are applying the law properly."

No. We don’t. So what if the citizen isn't a "legal expert"? Our laws – every single, solitary law ever written and placed in a law library – were written in the name of the citizens, not in the name of "legal experts". Writing laws to satisfy the “legal experts” is what happens in fascist or otherwise totalitarian countries. We’re a Democracy. Of, by and for “we the people”.[1]

The laws are supposed to satisfy us, the “non-experts”, not the self-righteous courts, not the power-hungry cops, not the bloated and indifferent legislators. Our form of government arose in the first place because we don't trust the government in matters of law making, enforcement and application. The advice to "trust them" in their applications is rather, and frighteningly, ironic.

We want a law that criminalizes the sexual abuse of minors. But when an 18-year old boy dates, and then has sex with, an "underage" female, applying the law against the sexual abuse of minors in that specific instance leaves many with a wrinkled nose. Something doesn't smell right about it.[2]

An 18-year old boy having sex with his 15-year old girlfriend is not in the same category of social heinousness that, say, a 48-year old man having sex with that same 15-year old girlfriend. To tell the jury that it can only address the facts [was there sex? was he an "adult"? was she a "minor"?] and not the nature of the circumstances themselves is to erase, indeed obliterate, Liberty's "last line of defense".

We've all heard about the umpteen-billion-dollar "McDonald's Coffee" award. And we've heard the American Trial Lawyer's rationalizations for why it was proper[3]. Hardly anyone is aware that the jury which made the original award, to a juror, apologized to McDonalds and said they wished they hadn't had to come to such a decision, but that they weren't allowed to consider the nature of the circumstances, whether or not the law allowing tort litigation was being used to pitchfork an idiot customer doing stupid things into financial windfall by transferring blame for her stupidity – even if incompletely – to someone else.

Frankly, I'm of the opinion that if I do something stupid with something I bought, then it's my fault for being stupid, not the guy who sold it to me. Doesn't matter if the thing I bought is inherently dangerous, or only potentially dangerous, or deemed "safe". If I put a cup of grape soda between my legs, then pull out into traffic, squish the cup and stain my $600 worsted wool suit, then it isn't the fault of the place who sold me the grape soda, nor is it the fault of the cup-maker. It's mine for doing something stupid, and the cost of cleaning the suit comes out of my pocket. Or the cost of replacing it, if it can't be cleaned.

If I put a cup of hot coffee between my legs ...? Same deal. And the McDonalds jury thought the same. But they weren't allowed to rule on that thinking, because their "line of defense" was breached by a combination of judicial arrogance[4], and the jury’s own ignorant impressionability.

I don't know about anyone else, but I was taught that the US legal system was different from all others in that here, in the US, citizens were free, and the government wore the shackles. In nearly all other countries, it's designed to be the other way around. In other words, you elementary school civics flunkies, the government doesn't tell us what to do, we tell them what to do. That's the way it is supposed to work here.

Does it? Certainly not.

Why not? In no small part, because the people who populate the government – in this case, the courts – are those who want the power of being in the government. They want to issue orders, and many of the citizens who are ordered around believe that they are required to deferentially accept the orders simply because they are made. You must take off your hat in the courthouse. Why? Because the judge said so.

So what? He works for me, not the other way around. He's only allowed to do what the law specifically says he's allowed to do, remember? He's the government; he's wearing the shackles. Show me the law that says I have to take my hat off. Show me the law that says I have to stand when he comes into the room, even.

You must accept the judge's instructions which declare that the proper law is being applied, and is being applied properly. Why? Because the judge said so.

There's a fox-henhouse deal going on here. Our legislators write laws, cops enforce those laws, and judges tell us which laws are being applied. Citizens of the US are supposed to be unique in all the world in that we have the authority, described in our Constitution, to have input into that process at both ends: we are supposed to be able to tell the legislatures which laws we want when voting, and we are supposed to be able to tell the judges whether or not they are applying them properly when serving on juries. We are the legal Alpha and constitutional Omega; law begins and ends with us. It is written.

It’s debatable whether or not legislatures make the laws we want, but judges say it is improper for us citizens – through the "jury of peers" – to control the application of those laws. Because the judges say so. Did McDonalds sell the stupid old lady a cup of coffee? what was the temperature of that coffee? were the stupid old lady's injuries consistent with a scald incurred by a liquid at that temperature?

Those are the facts[5]. The nature of the circumstances is different from facts – but impertinent to "justice", because the judge said the law was being applied properly. We have to believe him because he is, after all, a judge. His word is law.

Well, sorry, yeronner, but neither you nor your words are the law, and you don't own the law.[6] We are and we do. Citizens. They're our laws, every. Single. One of them. Remember that. I do. And I'm not impressed by someone who says, "I'm a judge." Big hairy deal. I'm a citizen, and in this country, though there're many more of me than you, I have the more important position.

Remember that, as well.

So from now on, you can stand when we enter the room.

The Cost of Privilege

But that isn't what I set out to write.

I was admonished, in the jury video, that I mustn't form opinions of the case before both sides were heard – assuming that I was selected to be on a jury. The defendant is innocent until he is proven guilty. This is a cornerstone of American Jurisprudence, I was told, built firmly and squarely upon the Bill of Rights.

My thoughts upon hearing this were, "Yes, I paid attention in school, eight thousand years ago. I remember that very very well, thank you."

Of course, I'm aware that many of my fellow citizens are not so aware of that principle as I am, and they need to be reminded of it more or less often. A person is to be considered innocent until he is proven guilty. That goes for O J Simpson, Michael Jackson, Kobe Bryant, and Harold P Landsbury.

Who is Harry Landsbury? Exactly.

He’s a nobody. We're all equal – and innocent – until the government proves us guilty of violating the laws we wanted them to make on our behalf, and enforced in the manner we want them enforced. Get it?

"Innocent until proven guilty" was unique to the United States at the time it was conceived. It's not unique to the US anymore.

Not because other nations have fallen all over themselves in adopting such a noble philosophy themselves, but because we have severely backslid into the more expedient "you're guilty unless you prove you're innocent" – the historic standard of legal justice.

Some might say we never left that expedient. I'm not going to argue it. There's undoubtedly sufficient evidence to make the case that it has always been imperfectly applied even when attempted.

But again, I remember basic American Civics. I also don't accept expedience as a justification for violating rules. We are supposed to be free citizens in a free country, and innocent until proven guilty.

My question is: when is this supposed to happen? I hope it's soon; I'm in my forties now, and I've been waiting a while for it to start. Almost as long as it seemed I was waiting for all the other future jurors to wander into the courthouse on the first day of jury duty.

Innocent until proven guilty. Grand maxim. Without a trace of irony, the "official" jury service video gave us this civics refresher as we sat on the third floor of a building to which we gained admission only by enduring an expedient "guilty until you prove yourself innocent" exercise on the first floor.

For those who are slow to catch on, I'm talking about the little nazi-stand they have at the door. To the literal-minded, it was the line to the magnetometer; to the more prosaic, the x-ray machine.

To those concerned with being a free citizen in a free country, though, it is a nazi-stand.

Nazi-stands have popped up all over the country in the last several decades, always as a response to some immediate outrage or other. The justification is always the same, too. It’s for "safety".

"Don't you want to be safe?"

Of course. But at what price? There are some prices I’m not willing to pay in order to accomplish the noble but unobtainable goal of safety. Surrendering freedom and presumption of innocence is a pair of prices I’m not willing to silently or politely surrender. I’d rather be free than safe, and it certainly seems to be an either-or choice between them.

In order to be ultimately safe, I'd have to wrap myself up in bubble-wrap, never go anywhere, breathe only pure air, eat only pure food ... but I'd still be subject to the random caprices of old age and natural disasters. Better to just kill myself now, huh? Damn my parents for having me in the first place and subjecting me to this horrid, horrid unsafe world!

But I'm here, and I'm [supposedly] a free citizen in a free country, and I kinda like that. Being free, that is. Freedom brings the privilege of, in short, being free. The government is wearing the shackles, remember? We aren't. We get to go where we want. Without hassle. Unless laws are there to stop us, of course. So you quibbledicks who are going to jump in with the tiresome and boring "so you think you can drive your car across my lawn just because you want to get to the other side of it" can keep it to yourself.

Again, the laws are supposed to be there because we want them there. If we want our lawns protected from the driving anarchist then we accept the cost of having our free driving privilege curtailed to the roadways. Freedom is privilege, but the privilege of freedom has costs. How badly do you want to be free?

If you want to be free, you're going to have to accept the costs that come with it. The single largest cost of your freedom is accepting the freedom of others. Others’ freedom means that you cannot be made as safe as you might wish to be. Being free, in this country, according to the rules that are written down, also means being innocent until you are proven guilty, and sometimes that presumption of innocence makes others fear for their own safety, rationally or not. The government is not [supposed to be] allowed to treat you any other way – without a darned good reason.

Trying to enter a courthouse is not a good reason to be considered guilty.[7]

So why are we presumed guilty? Because someone at some time brought something into a courthouse with which he hurt other people. So now everyone is presumed guilty of trying to do the same thing – until they step through the nazi-stand to prove they aren't.

Ironic, eh? The building which houses all those people claiming to enforce our rights won't enforce our rights unless we first abandon those rights literally at the door. The jurors who are scolded to consider the defendant innocent until he’s proven guilty are first required to prove themselves innocent in the face of presumed guilt. Sad and pathetic.

"But what about the next time a guy wants to shoot up a courtroom full of people he doesn't like?"

First, how often does that happen? In the millions upon millions of court cases and hearings and appearances, how many times does this happen each year? Two? Three? There has been no reduction even after implementing nazi tactics to stop it.

Secondly, what, you think he'd be the only guy in the place with a gun?

How badly do you want freedom? Enough to pay the price for it? Personally, I am. I'm sorry you'd rather be aww safe and cuddwy than free. There aren't enough kevlar blankies and bubble wrap for some people. And their medication would seem to need a refill as well.

Anyone trying to fly from one place to another is guilty of being a hijacking terrorist unless he submits to abandoning his rights again. This process complements the standard passive magnetomic nazism with an interrogation, which enquires after who you've had conversations with and who packed your bags.

They were doing this before 9-11, in case you weren't aware ... Lotta good it did.

How many millions of airline passengers are there on US domestic flights? How many hundreds of thousands of flights?

How many hijackers are there, actually? Now do some math.

Airlines have more trouble with people smoking in the lavatory, yet I don't see any TSA-nazis confiscating cigarettes at the gate. Just Granny's nail clippers. Careful! She might pin down the pilot and give him an unauthorized manicure!

How badly do we want to be free in this country? I'd rather face the infinitesimal chance that there's a hijacker on my plane trying to fly me to Cuba or into the Sears Tower than endure 100% presumption of being a terrorist, and the indignities that go with it.[8]

Those indignities, by the way, are prohibited by the Constitution, and which so many “safety first” rationalists are whistling past the graveyard to accept. The philosophy of "innocent until proven guilty" is still built firmly and squarely on the Bill of Rights, which “safety” doesn’t trump.

The Bill of Rights is what takes the shackles off American citizens and places them on the American government. The American government at all levels, from local courthouses, to public schools, to the FAA’s airports. And government office buildings…

I worked in the federal building in downtown St Louis both before and after the bombing of Murrah in Oklahoma City. Within a week of the bombing they installed a nazi-stand in the lobby. Every morning I walked through the nazi-stand and called it a nazi-stand to the nazis who worked it.

One morning one of the nazi guards who was "just doing his job"[9] asked me why I called it that.

Mostly, because I am being presumed guilty of driving a rental truck full of explosive fertilizer through the lobby each time I come to work. Frankly, I resent that. And I have a legitimate reason for resenting it. I'm a free citizen in a free country, and the government is treating me like I'm a criminal until I prove I'm not.

"Oh, well, but you are a potential criminal, and they're just being safe. We have to check."

Really! So-o-o ... how many rental trucks filled with explosive fertilizer have ever been driven through the lobby of federal buildings? Or any building, for that matter? Feel free to be specific. You want to protect this building from that danger, stop traffic at both ends of the block and close the parking lots.

Don't you think it's the slightest bit ironic that the same government created to protect our freedom is taking away our freedom to do it?

I've asked this question before: how badly do you want freedom? Enough to pay the price for it? Or would you rather be "safe"?

Is freedom from the infinitesimal chance that your plane will be hijacked worth 100% accusation of being a terrorist?[10] Is freedom from the infinitesimal chance that the briefcase of the guy behind you is really a rental truck filled with a half ton of fertilizer worth 100% accusation of carrying bombs?[11] Is freedom from the infinitesimal chance of being plugged by the divorcing father who’s gotten tired of being continually screwed out of his kids worth the 100% accusation that you are him?[12]

These are all very, very trivial "safeties". There's a far greater likelihood that your teenager is going to be involved in an automobile accident which will cause financial loss, injury or death. For the safety of the community, we should prohibit teenagers from having access to the front seat of the car.[13]

Yet we don't.

There's a one-in-four chance that a black male between 16 and 24 will negatively come into contact with law enforcement, and statistically this demographic commits one-third of the street and property crime. Yet "safety" doesn't justify us taking all black males between 16 and 24 and sequestering them someplace until their 25th birthday.

Something about a pesky "Bill of Rights".

So why does the Bill of Rights apply to black males between 16 and 24 who are far more likely to commit crimes, and commit a disproportionate number of them, but not to the public at large who wants to do nothing more strenuous than check on their social security application, visit the grandchildren in Tucson, or pull jury duty?

We are prohibited from routine stop-n-search of young black males even though there’s a one-in-four chance he’s at least a minor form of outlaw, but we’re justified in the same stop-n-search of the general public because each one might be the one-in-a hundred-million disgruntled litigant, the one-in-a billion hijacker, or the one-in-a-trillion fertilizer bomber.

Is it not rule-breaking when it's even-handed? Or do the extremely long odds provide the excuse?

If the government knocks down everyone's door to search for, oh, I don't know, child porn, maybe? that makes it alright?

Somehow I'm skeptical.

Hey, it's a safety issue there, as well. Gotta protect small children from the ravages of exploitive pornographers, and one way to do that is by cutting off the pornographers' funding – from the people who buy child pornography. Which is why merely owning it is illegal.

What are the standard trivializations again? oh yes: if you're not guilty you've got nothing to worry about. If you don't have child porn in your home, then you shouldn't mind the cops busting in your doors to look for it.

Should you?

Cuz they won't find any, and you'll be in the clear.

Isn't that how it goes? Yes it is.

"If you're not intending to hijack the plane, then you shouldn't complain about them searching you to find out if you're planning to hijack the plane."

"If you aren't intending to pepper family court with bullet holes, then you shouldn't complain about them searching you for guns."

“If you aren’t planning to blow up your office building with a thousand pounds of fertilizer, then you won’t mind them looking in your briefcase for a half-ton of anhydrous.”

Yep, that's how it goes. I've heard that at least a million times. Most recently earlier this week by the little old and very proper lady who asked me why everyone was standing in a long and immovable line. She had to ask me three times what a nazi-stand was.

The other way it typically goes is this: the people who complain are the ones who are guilty, or at least hiding something.

Let's see then, how many of the 9-11 hijackers were stopped at the nazi-stand because they complained about being "screened"? None; not a one. As I recall, one was stopped but he didn't complain. He was the picture of politeness. He was then allowed to take his seat. Bang goes that pat theory.

How many people who say that complainers are guilty, or “hiding something”, would howl about their doors being busted in during a sweep for child porn? Nearly all of them, unless I miss my guess.

Exactly how badly do you want freedom?

Are you willing to put up the cost? Or do you simply wish to make others put up with costs which you find tolerable and on your behalf, while declaring the cost too great when it actually bothers your own conscience? …like, when the safety it provides is not your own?

Who does the Bill of Rights apply to again? Black males? Teenaged drivers? People who don’t want to be implicitly accused of owning child porn?

Or every citizen? under every circumstance?

[1] …where have I seen that phrase before…?[2] Which is why many states have started adopting what they call “Romeo and Juliet laws” which largely decriminalizes consensual sex between kids, even when one is an “adult” and the other a minor otherwise legally considered to be “incompetent to form consent”. Yet how many tens of thousands of past-Romeos are now considered “sexual offenders” for hormonal indulgences decades old, required to register as same to be tracked wherever and when ever they move, and warned to stay away from children, sometimes even their own? Telling the jury that their first duty was to judge the application of the law before judging the facts would have eliminated most of this mess.[3] McD's had gotten “hundreds of complaints about over-hot coffee”; out of how many billions of cups sold? that's a fraction of a fraction of a fraction of 1%. Literally 99.999% of McD's customers were satisfied. [4] with the attendant loyyerly sycophantia[5] or the questions which lead to the facts, anyway[6] And this is most of the reason why I vote against all judges on principle: I have them, they don’t.[7] …and, conversely, according to the “official” video, a far better reason to be considered innocent.[8] “Live free or die”. “Give me Liberty or give me death”. “I’d rather die on my feet than live on my knees”.[9] advice: please watch Judgment at Nuremberg sometime for my view of people who "just do their jobs".[10] If they weren’t accusing you, they wouldn’t be checking you.[11] Op cit or ibid; pick one.[12] See above.[13] Yet, relegating them to the backseat carries with it a different set of perplexing dangers.